I am a senior editor at Forbes, covering legal affairs, corporate finance, macroeconomics and the occasional sailing story. I was the Southwest Bureau manager for Forbes in Houston from 1999 to 2003, when I returned home to Connecticut for a Knight fellowship at Yale Law School. Before that I worked for Bloomberg Business News in Houston and the late, great Dallas Times Herald and Houston Post. While I am a Chartered Financial Analyst and have a year of law school under my belt, most of what I know about financial journalism, I learned in Texas.

Obamacare Judges Must Answer The "Broccoli Question"

Whether you’re for Obamacare or against it, you must have pondered the broccoli question. Namely: If Congress can order you to buy health insurance, why can’t it order you to buy (and eat!) broccoli?

The answer isn’t as simple as it seems. If the Supreme Court finds the insurance mandate in the healthcare reform act is constitutional, it is endorsing a very expansive view of Congress’ power to regulate interstate commerce under Article I of the Constitution. The Obama administration argues Congress is well within its rights to regulate an interstate industry that delivers a product virtually every American will use at some point in his or her life. To go without health insurance, the administration says, is to impose costs on other Americans. Millions of uninsured impose billions of dollars in costs on Americans nationwide.

But that same argument works for broccoli, the eating of which is believed to protect against colon cancer. Reducing the rate of colon cancer would reduce healthcare costs and thus have a direct economic impact on the interstate healthcare market.

Healthcare-law proponents have “had trouble articulating anything that makes the health-insurance market special,” said David Kopel, a conservative constitutional law expert with the Cato Institute. “You can think of lots of products everybody consumes. Clothing. Food.”

In fact, health insurance is one of the few products that by law can’t be purchased on an interstate basis (the states zealously protect their power to regulate the insurance industry). So on that basis, Kopel said, healthcare might be one of the least interstate markets Congress can regulate, Kopel said.

So how can the government’s lawyers argue for the insurance mandate without including the broccoli mandate? Michael Dorf of Cornell University Law School offers a few tips.

The key cases are U.S. vs. Lopez and U.S. vs. Morrison, two modern decisions that set limits on Congress’s Commerce Clause powers. In Lopez, the court struck down a law prohibiting guns near schools as being too disconnected from any reasonable concept of interstate commerce. And in Morrison, the court did the same. Congress tried to tie both laws to the aggregate effects of criminal acts on the economy, but in Morrison the majority held that was constitutional overreach.

Petitioners’ reasoning …will not limit Congress to regulating violence but may …be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.

In Morrison, Justice Steven Breyer penned a dissent making the very point Obamacare critics make. It’s impossible to formulate a rule, he wrote, that allows Congress to, say, outlaw growing marijuana for your own consumption but not violence against women. “Virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State,” Breyer wrote. Instead of being a defect, the idea of almost unlimited Commerce Clause powers is a fact of the modern world.

Since judges cannot change the world, the “defect” means that, within the bounds of the rational, Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance.

But Breyer lost that fight. The majority “wanted a limiting principle” on Congress, Dorf said, and came up with one by deciding that federal laws can regulate a lot of seemingly uneconomic activity but must have a firm economic basis at their core. Even the Civil Rights Act of 1964 was passed under Commerce Clause powers because it targeted employers, schools and businesses, all arguably economic actors. In a practical sense, Dorf says, the law must be directed at the person engaging in economic behavior — the motel owner preventing black travelers from checking in, or the commercial farmer growing wheat to feed his animals in violation of federal crop price-support regulations.

Some people have a hard time seeing the difference between preventing innkeepers from discriminating and locking up people for carrying guns near schools, Dorf said, but it exists.

“The difference is there are more analytical steps to get to economic activity in the gun-free schools act than in the 1964 Civil Rights Act,” he said. “In the 1964 act Congress directly regulated businesses.”

So the justices could rule that requiring people to buy insurance fulfills an interstate regulatory scheme, while forcing them to eat broccoli is too distant from any rational economic goal, he said.That helps get around the uncomfortable precedent of Wickard v. Filburn, where Congress ordered the farmer to stop growing wheat for his own consumption. That law, too, targeted a commercial farmer engaged in business.

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Oh what a tangled web … Congress could have avoided the whole mess by enacting the individual mandate as a tax. That wasn’t done because … why? Oh yeah, the promise to not raise taxes had been made.

In the meantime, transmogrifying the commerce clause into an unlimited power doesn’t bother Democrats because they want the unlimited power anyway. The thought that they might not always be the ones in office exercising that power has not occurred to them.

Perhaps that’s the answer: reject the individual mandate because Congress clearly has the power to tax but chose not to do so. Instead they chose to engage in sophistry to acquire yet more powers that they don’t need [for this statute] and avoid voter ire for raising taxes. Since there is a constitutionally non-controversial means of accomplishing Congress’ intent they should do so that way.

In the meantime … those who don’t want Obamacare are going to have to speak up, loudly and frequently, because it’s by no means certain the court will invalidate it.

ObamaCare was decided by Nancy Pelosi, behind closed doors — not by Congress. She openly bribed members of Congress, culminating with that loser from Nebraska who bragged about getting the best bribe.

If you had bothered to read the Constitution, Congress is not some omniscient entity that the stupid masses must obey — quite the contrary. The REPRESENTATIVES in Congress are required BY LAW to represent the people. Guess what? While many people want health care reform, 63% of Americans did not and do not support ObamaCare. Congress violated the Constitution — or more precisely that witch Pelosi violated the Constitution.

Congress did not decide ObamaCare, Mr Fisher. Maybe you need to pull your head out of your law books and look at the real world a little more.

Before you debate the irrelevant minutea of Wickard and Fillburn — try focusing on the basics. Try to see the forest from the trees.

While a majority of the country supported civil rights (arguably not in the deep south, but nationally) — the majority did not and does not support the mockery of democracy called ObamaCare and the corruption that is Nancy Pelosi.

You failed to grasp the most basic concepts of democracy and representative government.

You have missed the most important point. We spend over $50 billion per year in paying for uncompensated care. People who lack insurance and use the system directly cost those of us who pay for our health plans and healthcare more money. The emergency medical treatment act of 1986 mandates that every one must be treated.

All Obamacare is doing is mandating that you pay for the system that you have access to, and in many cases use.

If only it were that simple. How many of the people who now get subsidized care will be paying premiums sufficient to pay for it after 2014? I seriously doubt the inclusion of a few healthy workers who will now be buying insurance will be enough to eat very far into that $50 billion.

The argument isn’t a cost benefit argument, it is a constitutional principle argument.

As an economic argument, the Kaiser Foundation report of uncompensated care for 2004 shows that there was an economic value of forgone health of over $100 billion relating to the uninsured.

There are so many economic arguments around the cost of healthcare as opposed to the cost of “sick care” that we can go into, but this is about the mandate.

The question is this: Does congress have the power to regulate this commerce (mandating insurance coverage) even if the effects (uncompensated care) are non direct or trivial?

Keeping in mind that depending where you look, you will find that insurance premiums are at least a few hundred dollars more than they should be to help cover the costs of the uninsured and that is a direct effect of your actions.

In all honesty, there isn’t a great precedent because there is really nothing similar to our health insurance system.